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EXHIBIT 10.59
U. S. CAN COMPANY
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT ("Agreement") dated as of May 1, 1997 (the
"Agreement") is by and between United States Can Company, a Delaware corporation
having its principal offices at 000 Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000
("U.S. Can"), and Xxxxxxxx X. Xxxxxxx, an employee of U.S. Can (the "Employee").
WHEREAS, the Employee has been or is being hired to serve as SENIOR
VICE PRESIDENT INTERNATIONAL of U.S. Can; and
WHEREAS, U.S. Can desires to retain the Employee's services, and the
Employee is willing to enter into and/or continue employment as an employee of
U.S. Can on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. EMPLOYMENT. The Employee shall be employed by U.S. Can as Senior
Vice President International for the Term of Employment (as defined in Section 5
hereof), and on the terms and conditions set forth herein.
2. DUTIES. The Employee shall perform those duties normally associated
with the position of Senior Vice President International, as well as any other
duties and tasks as may be assigned from time to time to the Employee by the
Chief Executive Officer of U.S. Can. During the Term of Employment, the Employee
shall work exclusively for U.S. Can and its Affiliates (as hereinafter defined)
and devote substantially all of his business efforts and time to fulfill the
duties of his employment.
For purposes of this Agreement, the term "Affiliate" shall mean U.S.
Can, any other corporation owned or controlled by U.S. Can, directly or
indirectly, and any parent or subsidiary of U.S. Can, including, without
limitation, U.S. Can Corporation, a Delaware corporation.
3. SITE OF EMPLOYMENT. During the Term of Employment, Employee's
regular place of employment shall be U.S. Can's principal offices located at 000
Xxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, or such other place as the Chief
Executive Officer may direct.
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4. COMPENSATION AND BENEFITS.
a. Salary: In full consideration for the aforementioned
services and subject to the due performance thereof,
the Employee shall receive an annual salary of
$170,000 (payable bi-weekly) during the Term of the
Employment; provided, however, that the Employee
shall receive only a pro rata share of such salary
through the date of termination or resignation in the
event the Employee is terminated for cause by U.S.
Can pursuant to Section 6(i) or in the event the
employee voluntarily resigns pursuant to Section
6(iii) hereof. U.S. Can shall calculate any pro rata
share of the Employee's salary earned through the
date of termination or resignation, including accrued
but unused vacation time. In the event the Employee
is terminated by U.S. Can without cause pursuant to
Section 6(ii) below, the Employee shall be entitled
to receive his Severance Payments pursuant to Section
7 hereof; provided, however, that in the event the
Employee is terminated without cause due to a
disability in accordance with Section 8 hereof, U.S.
Can shall only be obligated to the Employee for the
difference between the Severance Payments and any
other amounts received by the Employee as a result of
such disability, including but not limited to amounts
received pursuant to any disability insurance plan
provided by U.S. Can, worker's compensation payments
and any compensatory or punitive damage awards
received in any personal injury action. Any increase
in base salary, or the award of any bonus, shall be
made in the sole discretion of the Board of Directors
of U.S. Can, taking into account, in their sole
discretion, whether the Employee has attained the
performance goals, financial and otherwise,
established for the Employee by the Board of
Directors for the preceding year.
b. BENEFITS. The Employee shall be entitled to receive a
car or an allowance not in excess of $9,600 per year
and the other fringe benefits received by other
officers of U.S. Can and its Affiliates, including
but not limited to, being covered under any incentive
compensation plans, group insurance plans, stock
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option, stock grant and/or stock purchase plans and
any retirement accumulation plan, including but not
limited to the Non-qualified Excess Benefit
Replacement Plan pursuant to Section 401(a)(17) and
Section (15) of the Internal Revenue Code of 1986, as
amended, offered by U.S. Can and/or its Affiliates;
provided, however, that nothing herein shall require
U.S. Can or its Affiliates to maintain the fringe
benefits currently provided to officers of U.S. Can
and/or its Affiliates.
c. REASONABLE AND NECESSARY BUSINESS EXPENSES. The
Employee shall be entitled to reimbursement from U.S.
Can of reasonable and necessary business expenses
incurred by the Employee in the course of his
employment.
d. VACATION/HOLIDAYS. During each year of the Term of
Employment, the Employee shall be entitled to four
(4) weeks of paid vacation plus the paid holidays
observed by U.S. Can and its Affiliates.
5. TERM OF EMPLOYMENT. The Employee's term of employment by U.S. Can
shall commence on the date hereof and shall continue until termination thereof
by the Employee or U.S. Can pursuant to the terms hereof (the "Term of
Employment"), subject to the provisions of Section 10 hereof.
6. TERMINATION. The Term of Employment may be terminated (i) by U.S.
Can with cause (as set forth below), effective immediately; (ii) by U.S. Can
without cause (as set forth below), effective thirty (30) days after written
notice to Employee; (iii) by Employee unilaterally, effective thirty (30) days
after written notice to U.S. Can; or (iv) on death of the Employee, effective
immediately.
Termination with cause is permitted in the following circumstances:
a) material breach or non-performance of any of the
terms and conditions of this Agreement by Employee
without proper cause, after a written demand for
performance has been delivered to Employee by U.S.
Can, which notice specifies the nature of the default
and Employee has failed to cure such default within
five (5) days thereafter;
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b) commission of any crime involving assault, moral
turpitude or any felony in connection with the
performance of his duties hereunder; or
c) other intentional or negligent conduct having a
material adverse effect on the condition, financial
or otherwise, of U.S. Can, or any of its Affiliates.
In every other case of termination by U.S. Can, the termination shall
be deemed to be without cause.
7. SEVERANCE PAYMENTS. Should U.S. Can or its successor/assignee
terminate the Term of Employment without cause pursuant to Section 6(ii) above,
the Employee shall receive eighteen (18) months of base salary and the insurance
benefits which exist during the pay period immediately preceding the termination
of the Term of Employment (the "Severance Payments"). The Severance Payments
shall be payable in the same manner as base salary payments are made during the
Term of Employment in accordance with Section 4 hereof.
8. DISABILITY OF THE EMPLOYEE. In the event that the Employee suffers
total and permanent disability during the Term of Employment hereunder, then,
effective on the date thereof, the Term of Employment shall conclude; provided,
however, that the termination of the Term of Employment resulting from the total
and permanent disability shall be deemed to be termination without cause, and
the Employee shall be entitled to receive the Severance Payments pursuant to
Section 7 hereof, less any other amount received by the Employee as a result of
such disability as provided for in Section 4(a) hereof. Total and permanent
disability shall mean a disability because of which the Employee is physically
or mentally unable to substantially perform the duties required of him under
this Agreement for a period of six (6) consecutive months or more.
9. DEATH OF THE EMPLOYEE. If the Employee dies during his Term of
Employment hereunder, the Term of Employment shall conclude on the date thereof,
and the Employee's designated beneficiary or, in the event no beneficiary has
been designated or survives, to the estate of the Employee, the estate of the
Employee shall be entitled to receive a death benefit from U.S. Can equal to two
times the Employee's base salary existing on the date of his death (not to
exceed a maximum of $500,000). Any amounts payable by U.S. can in respect of the
death benefit provided herein may be paid in twenty-four (24) equal installments
at U.S. can's option.
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10. EFFECT OF EXPIRATION OR TERMINATION. If the Term of Employment
comes to an end for any reason whatsoever, the obligations of the parties under
Sections 11 and 12 shall continue in accordance with the terms and conditions of
each respective Section. Further, Sections 4 and 7 will remain in full force and
effect until the Employee's account is settled.
11. NON-COMPETITION. The Employee hereby agrees that, during the Term
of Employment, and during the Agreed Period (as hereinafter defined), the
Employee shall not: (a) engage, directly or indirectly, in any Prohibited
Activities (as hereinafter defined) in any Prohibited Territory (as hereinafter
defined) as an owner, officer, director, employee, stockholder, principal,
consultant, agent lender, guarantor, cosigner, investor or trustee of any
corporation, partnership, proprietorship, joint venture, association or any
other entity or business of any nature or (b) solicit any customers or clients
of U.S. Can or its Affiliates in connection with any transactions which are in
direct competition with the business of U.S. Can. Notwithstanding the foregoing,
the Employee may be the owner of not more than 5% of the outstanding capital
stock of any corporation engaged in Prohibited Activities (as defined herein).
For purposes of this Section 11, "Prohibited Activities" shall mean any
manufacturing, development, sales, marketing, licensing and/or distribution of
any container which is directly competitive with any product supplied by U.S.
Can or any of its Affiliates and the provision of any services directly
competitive with services offered by U.S. Can or its Affiliates and "Prohibited
Territory" means the United States and any other country or applicable
geographic area where the products and/or services of U.S. Can or its Affiliates
are sold. The term "Agreed Period" shall mean the Term of Employment and the one
and one-half year period following the date on which the Term of Employment is
terminated.
12. CONFIDENTIALITY.
(a) For purposes of this Section 12, "U.S. Can Confidential
Information" means all Trade Secrets and Other Confidential Technical and
Business Information (as defined below) (whether or not reduced to writing and
whether or not patentable or protectable by copyright) which U.S. Can now owns
or is licensed to use, or may in the future own or be licensed to use during the
entire term of your employment at U.S. Can, including the Term of Employment
hereunder. "Trade Secrets and Other Confidential Technical and Business
Information" means all confidential
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or proprietary product development and design information and all confidential
or proprietary procedures, techniques, manuals, customer information,
specifications, data bases, test results, information concerning business or
product acquisitions, strategic plans, customer lists, pricing data, and
discoveries, inventions and innovations made, created, acquired or developed by
or on behalf of U.S. Can and/or it Affiliates but excluding in each case any
information which as a whole (i) is contained at the time of disclosure or
thereafter in a patent or a printed publication available to the general public,
(ii) is obtained from a third party lawfully in possession of such information
and who is not subject to a contractual or a fiduciary duty not to disclose such
information, or (iii) any other information which is known generally by the
public.
(b) The Employee agrees to take the following steps to preserve the
confidential and proprietary nature of U.S. Can Confidential Information:
(i) During or after the Employee's employment by U.S.
Can, the Employee will not disclose or transfer any
of the U.S. Can Confidential Information other than
as authorized by U.S. Can within the scope of the
Employee's duties with U.S. Can. Except to the extent
the Employee is authorized to do so in his capacity
as an employee or officer of U.S. Can, the employee
understands that he is not allowed to sell, license
or otherwise exploit any products or services which
embody or utilize in whole or in part any U.S. Can
Confidential Information.
(ii) The Employee will take all reasonable precautions to
prevent the unauthorized disclosure (whether
inadvertent or deliberate) of U.S. Can Confidential
Information to unauthorized persons or entities, and
will report promptly to appropriate U.S. Can
management any such activities by others.
(iii) While the Employee is permitted to retain all
personal information which is not comprised of or
derived from U.S. Can Confidential Information (in
whole or in part), all notes, files, data, tapes,
reference materials, reports, sketches, drawings,
price lists, customer lists, plans, memoranda,
records and any other document or matter comprised
of, or derived from U.S. Can Confidential Information
(in whole or in part) shall belong exclusively to
U.S. Can. At the request of U.S. Can or upon
termination of the Employee's employment with
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U.S. Can, the Employee will deliver to U.S. Can all
tangible materials embodying U.S. Can Confidential
Information in his possession or control.
(c) Except as otherwise provided herein, this Section 11 shall survive
for a period of ten (10) years following termination of this Agreement.
13. EQUITABLE RELIEF. The Employee understands that a breach by him of
any provision of this Agreement may cause substantial injury to U.S. Can and/or
its Affiliates which may be irreparable and/or in amounts difficult or
impossible to ascertain, and that in the event the Employee breaches any
provision of this Agreement, U.S. Can shall have, in addition to all other
remedies available in the event of a breach of this Agreement, the right to
injunctive or other equitable relief. Further, the Employee acknowledges and
agrees that the restrictions and commitments set forth in the Agreement are
necessary to protect U.S. Can's legitimate interests and are reasonable in
scope, area and time, and that if, despite this acknowledgement and agreement,
at the time of the enforcement of any provision of this Agreement a court of
competent jurisdiction shall hold that the period or scope of such provision is
unreasonable under the circumstances then existing, the maximum reasonable
period or scope under such circumstances shall be substituted for the period or
scope stated in such provision.
14. NON-WAIVER OF RIGHTS. The failure to enforce at any time any of the
provisions of this Agreement or to require at any time performance by the other
party of any of the provisions hereof shall in no way be construed to be a
waiver of such provisions or to affect either the validity of this Agreement, or
any part hereof, or the right of either party thereafter to enforce each and
every provision in accordance with the terms of this Agreement.
15. ARBITRATION. Any dispute as to any claim under this Agreement shall
be settled by arbitration in Chicago, Illinois by an arbitrator, who shall be
appointed pursuant to the rules of the American Arbitration Association. The
arbitration shall be conducted promptly and expeditiously in accordance with the
applicable arbitration rules of the American Arbitration Association. Any award
issued as a result of such arbitration shall be final and binding on the
parties, and judgement upon the award rendered by the arbitrators may be entered
in any court having jurisdiction thereof.
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16. SEVERABILITY. Whenever there may be a conflict between the
provisions of this Agreement and any statute, prevailing law, judicial decision,
ordinance or regulation, the latter shall prevail, but in such event the
provisions of this Agreement so affected shall be construed and limited only to
the extent necessary to bring it within the requirements of such law and in no
event shall such illegality or unenforceability affect the remaining provisions
or remaining portions of a provision of this Agreement.
17. NOTICES. Any notice given by either party hereunder shall be in
writing and shall be personally delivered or shall be mailed, certified or
registered mail, postage prepaid, as follows:
To U.S. Can: United States Can Company
000 Xxxxxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxx 00000
Attention: Chief Executive Officer
with a copy to: Xxxxxxxx X. Xxxxxxx
Xxxx & Xxxxxxx
000 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
To Employee: At the address of the Employee as set forth on the
payroll records of U.S. Can.
or to such other address as may have been furnished to the other party by
written notice in accordance with this Section 17.
18. ASSIGNMENT. The rights and obligations of U.S. Can under this
Agreement shall inure to the benefit of and shall be binding upon the successors
and assigns of U.S. Can.
19. ENTIRE AGREEMENT. This Agreement (together with any applicable
stock option agreement, stock grant agreement, stock purchase agreement or
change-of-control agreement) contains the entire agreement between the parties
and supersedes all prior or contemporaneous agreements and representations,
written or oral with respect to the subject matter described herein. No
representations or agreements, written or oral, other than the representations
and agreements contained in this Agreement, or any applicable stock option
agreement, stock grant agreement, stock purchase agreement or change-of-control
agreement, have been made to or in favor of the
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Employee with respect to the subject matter described herein. This Agreement may
not be changed orally, but only by an agreement in writing signed by both
parties.
20. APPLICABLE LAW. This Agreement shall be interpreted and enforced in
accordance with the laws of the State of Illinois, without regard to its
conflicts of law doctrine, and the Employee hereby consents to personal
jurisdiction in Illinois for such purpose.
IN WITNESS WHEREOF, the parties have executed this Agreement, in
triplicate, on the date first written above.
EMPLOYEE UNITED STATES CAN COMPANY
/s/ Xxxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxxxx Xxxxxxx X. Xxxxx
President and Chief Executive Officer
/s/ Xxxxx X. Xxxxxx
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Witness
[NOTORIAL SEAL]
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